CAAFlog » Court-Martial News

Last month the Associated Press produced a report titled: Opaque military justice system shields child sex abuse cases.

Focusing on child exploitation prosecutions (a particularly heart-wrenching kind of case), the report broadly condemns the military justice system and the Department of Defense for failing to make court-martial records easily accessible to the public, with the authors asserting that “while child sex crimes may not be swept under the rug, the Defense Department does not make it easy for the public to learn about them.” Of course, blaming the system or the DoD is nonsensical, as it is Congress and the President that make the rules.

In part, the report notes that “records from most federal court cases are available online through the Public Access to Court Electronic Records system, known as PACER. The military does not have a comparable repository.” This is certainly true. But implementing PACER (or an equivalent) is hardly simple, as it would require standardized rules for the handling, marking, and redaction of trial-stage documents in order to permit public release. Even the Associated Press admits that not everything should be public knowledge, as it does not provide the names of the child victims whose stories it uses to add emotion to its report. The military justice system currently relies on the Freedom of Information Act (FOIA) to address redaction and release, protecting the privacy rights of victims, witnesses, and even the accused. That process isn’t fast, but it’s what the law requires.

Notably, the report makes an early issue (in the third paragraph) of a Naval Criminal Investigative Service investigation that the Associated Press sought under FOIA but NCIS refused to release on privacy grounds. “The report was released only after AP appealed,” the report explains. However, a whopping nineteen paragraphs later it is revealed that:

The Naval Criminal Investigative Service initially said releasing its 198-page investigative report on DeSmit would constitute “an unwarranted invasion of personal privacy.” The AP appealed the denial, and the Navy judge advocate general’s office overruled NCIS, declaring the agency’s decision overly broad and instructing it to release all material within the report not exempted from disclosure. NCIS investigations, which include evidence from the crime scene and witness interviews, are not court documents but are used by military leaders to decide what action to take against a service member.

(emphasis added). How a PACER-like system will provide better access to things that are not court documents is anybody’s guess.

The House version of this year’s National Defense Authorization Act included a provision relating to “public availability of records of certain proceedings under the uniform code of military justice” that would have required publication of materials including “any motions and documents filed in connection with the proceeding.” I noted that provision in this post and you can read it in this document (it’s at section 556). However, the provision did not make it into the final bill. The AP report makes no mention of this provision, and sheds no light on why it wasn’t included in the final bill.

Yet the report does highlight one odd fact: court-martial results published by the services lack information on pretrial agreements:

After DeSmit’s conviction in January, the Marine Corps summed up the case in two sentences.

“At a General Court-Martial at Okinawa, Japan, Chief Warrant Officer 4 D. E. DeSmit was convicted by a military judge alone of conspiracy to commit sexual assault and rape of children, aggravated sexual abuse of a child, sexual abuse of a child and possession of child pornography. The military judge sentenced the accused to 144 years of confinement, a reprimand and dismissal,” a summary of the court-martial released by the Marine Corps read.

And that’s all the service would have said publicly, had the AP not pressed for more.

The pretrial agreement in the DeSmit case capped confinement at 20 years. While this fact likely would have been disclosed eventually (in the CCA’s opinion during mandatory appellate review), the published results present an incomplete picture of the sentence.

The publication of court-martial results is a relatively recent phenomenon. It’s unclear why those results don’t include information on pretrial agreements; seemingly crucial information. Sadly, the Associated Press seemingly made no effort to discover the reason.

There are good reasons to want greater public access to military justice records. Like any system, there’s still room to improve military justice. But the AP’s claim that the system is “opaque” and “shields child sex abuse cases” is overblown.

In the ongoing case against former Taliban prisoner Sergeant Bergdahl, there have been four separate petitions for extraordinary relief. The first (discussed here) (denial noted here) sought to disqualify General Milley as the convening authority because he was asserted to be an accuser. The second (discussed here) (also denied) asserted procedural irregularities in the early handling of the case. The third (discussed here and here) sought a writ of mandamus to permit the public release of the investigation into the circumstances of Bergdahl’s capture. The fourth (discussed here) sought relief from an order prohibiting Bergdahl or his counsel from releasing that investigative report, and is particularly notable in that a companion petition was filed by multiple media organizations that seek access to the report.

Last week, in what I think is an astonishing order, CAAF dismissed the third petition:

No. 16-0059/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority, and United States, Appellees. CCA 20150624. On consideration of the writ-appeal petition for review of the U.S. Army Court of Criminal Appeals decision on petition for a writ of mandamus, the motion on behalf of the National Institute of Military Justice for leave to file a brief as amicus curiae, the motion of the Center for Constitutional Rights to file a brief as amicus curiae, the motion of NBC News, a division of NBCUniversal Media, LLC, for leave to file a brief as amicus curiae, and Appellant’s motion for an expedited hearing, it is ordered that the motions of the National Institute of Military Justice, the Center for Constitutional Rights and NBC News to file amicus curiae briefs are hereby granted, that the writ-appeal petition is hereby dismissed, and that the motion for an expedited hearing is hereby denied as moot.

(emphasis added). CAAF’s order is what Alton Brown would describe as wafer thin, but the decision to dismiss the third petition without explanation (such as, perhaps, that the court considers it moot in light of the fourth petition), and also to dismiss it rather than deny it without prejudice (as the first and second petitions were) is really very surprising. It’s also puzzling.

Dismissal is appropriate when the court lacks jurisdiction, such as in The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, 72 M.J. 126 (C.A.A.F. 2013) (CAAFlog case page). Notably, since CCR was decided, I’m aware of just six extraordinary writ petitions / appeals that were dismissed by CAAF:

  1. Wilson, No. 13-8038/AF: Dismissed “for lack of jurisdiction” on August 2, 2013;
  2. Forry, No. No. 13-8037/AR: Dismissed “for lack of jurisdiction” on September 23, 2013;
  3. [LC], No. 14-8007/NA:  Appellant’s “motion to dismiss the writ-appeal petition” granted on January 15, 2014;
  4. Roukis, No. 15-0170/AR: Dismissed “for lack of jurisdiction” on November 18, 2014;
  5. Andreozzi, No. 15-0403/AR: Dismissed “for lack of jurisdiction” on March 21, 2015;
  6. And now Bergdahl, No. 16-0059/AR: Dismissed for no specified reason on November 23, 2015.

One of these is not like the others (and Bergdahl did not move for dismissal).

The Army CCA issued two interesting decisions on petitions for extraordinary relief in the Bergdahl case (complete coverage here). The first decision involves a petition by Sergeant Bergdahl (last discussed here) seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture. The CCA’s decision denying the writ states that:

Although not phrased as such, the relief petitioner seeks is for this court to countermand an order given by a military commander, in a circumstance where there is not yet—and may never be—a court-martial. This would be a broad view of this court’s jurisdiction.

. . .

Viewing [ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997)] in light of [Clinton v. Goldsmith, 526 U.S. 529 (1999)], we reject the invitation to extend the jurisdiction of this court under the All Writs Act to the pre-referral matter raised in this writ.

Bergdahl v. Burke & the United States, No. 20150624, slip op. at 3 (A. Ct. Crim. App. Oct. 8, 2015) (link to slip op.). The CCA also concluded that even if it had jurisdiction, the petition failed to establish any right to relief.

The second decision involves a similar petition from Bergdahl and multiple media organizations, and the CCA again finds that it lacks jurisdiction:

The jurisdiction of this court to issue process under the All Writs Act is limited to issues having “the potential to directly affect the findings and sentence.” LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not have jurisdiction to oversee the administration of military justice generally. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the release of documents to the public, prior to any decision on whether this case should be referred to trial, has the potential to directly affect the findings and sentence.

Hearst Newspapers, LLC, et al., & Bergdahl v. Abrams, Burke, Visger & the United States, No. 20150652, slip op. at 2 (A. Ct. Crim. App. Oct. 14, 2015) (link to slip op.).

Writ-appeal petitions of both decisions have been filed at CAAF.

Readers may recall the Wright case, which was an Air Force sexual assault prosecution that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims. The Government appealed that abatement and the AFCCA reversed, finding that the military judge’s findings were incomplete.

I discussed the AFCCA’s decision in this post. I summarized our prior coverage of the case in this post.

In a story available here, the Air Force Times reports that Airman Wright was just acquitted of all charges at trial:

An airman has been found not guilty of sexual assault after his case was transferred from Europe to Washington following a three-star general’s initial decision not to proceed with a court-martial.

A military panel of three officers and four enlisted airmen exonerated Senior Airman Brandon Wright on Wednesday evening, said Maj. Joel Harper, a spokesman for the Air Force District of Washington.

Wright had been accused of aggravated sexual assault in connection with a July 2012 incident while he was stationed at Aviano Air Base, Italy. Wright had also been charged with rape, but the prosecution later withdrew that charge.

Update: As noted in the comments, Stars & Stripes also has a report about the case, available here.

CAAF’s daily journal shows the following entry for Tuesday:

No. 16-0059/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority.  CCA 20150624.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for writ of mandamus was filed under Rule 27(b) on this date. Appellees will file an answer to said writ-appeal petition on or before October 23, 2015.

Prior coverage of the subject of this petition is available here.

Notably, CAAF’s docketing entry includes an order for the Government to file an answer to the petition. Bergdahl’s first writ-appeal petition (discussed here) was docketed without an order to answer, however eleven days later the court issued such an order (discussed here). Bergdahl’s second writ-appeal petition (discussed here) was also docketed without an order to answer, but the court did not order the government to answer.

Details in this Associate Press report posted by Stars and Stripes and by the New York Times.

I analyzed the writ petition in this post, and noted in this post that the court ordered the Government to respond.

In other news of the Bergdahl case, the Article 32 preliminary hearing officer completed his report and recommendation, however neither are public. Details available in this Washington Post story.

Order available here.

Sergeant Bergdahl has filed another petition for extraordinary relief – this time seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture.

A copy of the petition is available here.

According to the petition, during last week’s public Article 32 preliminary hearing, the investigative report and a transcript of MG Dahl’s interview of Bergdahl were submitted to the preliminary hearing officer. Sergeant Bergdahl wants to make these materials available to the public. However, Sergeant Bergdahl and his counsel are all subject to a protective order prohibiting them from releasing the materials (a copy of the order is attached to the petition; pages 89-90 of the PDF).

The petition also reveals that Sergeant Bergdahl’s counsel sought a advisory opinion from the Army’s Professional Responsibility Council regarding the ethics of releasing these materials in violation of the protective order. The request for the opinion is provided as an attachment to the petition and states that:

The defense is asking the convening authority to clarify or modify the protective order to permit the defense to disseminate unclassified case documents such as the transcript of SGT Bergdahl’s interrogation and MG Dahl’s executive summary. The defense wishes to be able to disseminate both of those documents at such time as they are marked in evidence by the preliminary hearing officer. This is important as a matter of affording SGT Bergdahl a fair hearing in the court of public opinion, since the government’s live witnesses’ testimony will be heard by the numerous news media representatives who are expected to attend the preliminary hearing, whereas mere documentary evidence will not be accessible by them or other new media in real time. In effect, the public will have only the government’s side of the story, but not the defense’s, as part of the critical news cycle.

Pet. Ex. 6 at 5 (page 47 of the pdf). Astonishingly, the Professional Conduct Council refused to issue any advisory opinion on the matter.

While concern about the “court of public opinion” is a debatable (perhaps dubious) basis for relief from a protective order, the writ petition presents the issue in a more fundamental context:

ONCE AN UNCLASSIFIED DOCUMENT HAS BEEN ACCEPTED IN EVIDENCE IN A PRELIMINARY HEARING OPEN TO THE PUBLIC, MUST THE CONVENING AUTHORITY RELEASE IT AND PERMIT THE ACCUSED TO DO SO?

There is strong precedent that an Article 32 must be open to the public and the press unless “compelling circumstances dictated a different result.” ABC, Inc. v. Powell, 47 M.J. 363, 366 (C.A.A.F. 1997). However, “every case that involves limiting access to the public must be decided on its own merits. Furthermore, the scope of closure must be tailored to achieve the stated purposes and should also be reasoned, not reflexive.” Id. at 365 (marks and citation omitted). The protective order in the Bergdahl case is very broad and seems to run afoul of this requirement.

Notably, neither the protective order nor the petition reference Mil. R. Evid. 506: The privilege for Government information other than classified information (one of the few privileges that I believe the Government should be able to assert under the UCMJ). That privilege applies at Article 32 preliminary hearings (in accordance with the new R.C.M. 405(h)). Yet it appears that the Government has not (yet) claimed that specific privilege.

The Government may well have the right to deny the public access to some of the materials that Sergeant Bergdahl wants to release, however I think there’s a very strong argument to be made that it has failed to narrowly tailor the restriction to meet only legitimate protective needs.

The Article 32 preliminary hearing into the charges against Army Sergeant Robert “Bowe” Bergdahl – who walked off of his Afghan combat outpost in 2009, was captured by the Taliban, and was held in terrible (and apparently tortuous) conditions until he was recovered in a prisoner exchange in 2014 – began last week at Fort Sam Houston in Texas. Here’s a roundup:

This Washington Post report by Dan Lamonthe provides an outline of the prosecution’s case against Sergeant Bergdahl. Mr. Lamonthe writes:

The officer who led the investigation of Bowe Bergdahl’s disappearance and capture in Afghanistan six years ago testified Friday that the Army sergeant said he walked away from his post as part of a plan to spark a search and get the attention of a general so he could express his concerns about his unit’s leadership.

Maj. Gen. Kenneth Dahl told a packed courtroom at Fort Sam Houston in San Antonio that Bergdahl felt the problems were so severe that they put his platoon in danger, but that Bergdahl’s perceptions were “completely off the mark.”

Associated Press reporter Juan A. Lozano has additional details here.

This CNN report provides an outline of the defense case:

When asked what in Bergdahl’s background might have caused his behavior in the military, Dahl said that the combination of growing up in rural Idaho on the “edge of the grid … being home-schooled” and the fact that he “internalized a lot of what he read” resulted in him having “idealistic and unrealistic expectations of people.”

Though Bergdahl was not duty-bound to comply with the investigation, he did and submitted to a day and a half interview. Bergdahl did exercise his right to silence at the start of the interview, Dahl said.

Dahl said he didn’t “believe there is a jail sentence at the end of this process.”

In this report the Christian Science Monitor quotes an anonymous official as speculating that this case will end with a request for discharge in lieu of trial by court-martial (known in the Army as a Chapter 10 – where it appears in Army Regulation 635–200 which governs the administrative separation of enlisted personnel). Notably, pursuant to paragraph 10-8.a of that regulation:

A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.

It’s also notable that in the absence of a request for discharge in lieu of trial, or a punitive discharge adjudged by a court-martial, Sergeant Bergdahl would likely be entitled to an honorable discharge. Chapter 3-7.a(1) of AR 635-200 states:

Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to AD or ADT or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted.

(emphasis added). Sergeant Bergdahl’s enlistment expired during his captivity, meaning that and end-of-obligation discharge now would include an honorable characterization of service. The big caveat to this is a finding that the captivity was due to his own misconduct; such a finding would exclude that time from the running of his service obligation, thereby extending his enlistment.

The Wright case is an Air Force sexual assault prosecution that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims. The Government appealed that abatement and the AFCCA reversed, finding that the military judge’s findings were incomplete.

I discussed the AFCCA’s decision in this post. I summarized our past coverage in this post.

Now Stars and Stripes reports here that the case will proceed to trial despite a finding of improper influence by senior Air Force officials:

Lt. Col. Joshua Kastenberg, in a July 30 ruling in response to a defense motion to dismiss the case against Airman 1st Class Brandon T. Wright, found that Lt. Gen. Richard Harding, formerly the Air Force Judge Advocate General, had improperly influenced the case or had given the appearance of doing so.

One such instance, the judge ruled, was recommending that Wright’s case be transferred to another court-martial convening authority for a do-over after the first convening authority, Lt. Gen. Craig Franklin, dismissed the case in the summer of 2013. Franklin’s dismissal came after an Article 32 investigative hearing at Aviano Air Base, Italy.

Such transfers are almost unheard of. It happened in the Wright case, Kastenberg’s ruling says, in part because Harding was worried that “the failure to have charges preferred against SrA Wright would enable Senator Kirsten Gillibrand to gain needed votes on a pending bill to remove commanders from the court-martial process.”

. . .

Yet none of these actions affected the current case against Wright, Kastenberg said, because all parties involved in the second investigation — at the Air Force District of Washington — acted independently, with no unlawful command influence. As a result of that investigation, a convening authority sent the case to court-martial.

Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v.  Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

Read more »

CAAF’s daily journal was just updated to show that on Tuesday the court denied two significant petitions for extraordinary writs.

The first was a petition from an alleged victim in an ongoing court-martial. I discussed the petition in a post titled: An alleged victim seeks extraordinary relief from CAAF.

No. 15-0606/MC. CB v. Moira Modzelewski, Captain, U.S. Navy, in her official capacity as Military Judge, Appellee, and Donald Foster, Lance Corporal, U.S. Marine Corps, Real Party in Interest. CCA 201500058. On consideration of the writ-appeal petition, Appellant’s motion for a stay of trial court proceedings, and the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time, the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time is hereby granted; Appellant’s motion for a stay of trial court proceedings is hereby denied; and Appellant’s writ-appeal petition is hereby denied.

The second was a petition from Sergeant Bergdahl that I discussed in a post titled: Bergdahl seeks extraordinary relief.

No. 15-0616/AR. Robert B. Bergdahl v. Mark R. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority. CCA20150383.  On consideration of the writ-appeal petition, and the motions filed by Alfredo N. Foster, Jr., Esq., and Franklin D. Rosenblatt, Esq., to appear pro hac vice, said motions are granted. The writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

Notably, in the Bergdahl petition, CAAF granted the government an extension of time to file an answer to the petition, even though the government requested the extension after the deadline to file the answer had already passed (discussed here).

LA Times story here.

Yesterday, CAAF issued the following order:

No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383.  On consideration of Appellee’s motion to file an extension of time out of time and motion to extend time to file an answer to the writ-appeal petition, it is ordered that said motions are hereby granted, and that Appellees will file an answer to the writ-appeal petition on or before June 22, 2015.

(emphasis added). I discussed Bergdahl’s petition in this post.

Notably, CAAF’s rule 28(b)(2) appears to compel an answer to a writ-appeal petition within ten days of the filing of a petition:

(2) The appellee’s answer to a writ-appeal petition shall be filed no later than 10 days after the filing of the appellant’s writ-appeal petition.

To my knowledge, the Government routinely fails to answer writ-appeal petitions (without consequence).

According to a Los Angeles Times report available here, the Government has failed to compel five witnesses to testify during the retrial of Marine Sergeant Hutchins:

Dspite offers of immunity from prosecution, four ex-Marines and a former Navy corpsman have refused to testify against Sgt. Lawrence Hutchins in his retrial in the 2006 killing of an Iraqi.

The five — all of whom were convicted in the killing and served time in the brig — asserted their 5th Amendment right against self-incrimination during the court martial last week at Camp Pendleton.

Undeterred, the Government presses on:

Over [the defense counsel’s] objection, the judge ruled that the prosecution could submit as evidence verbatim transcripts of the squad members’ previous testimony.